Why Is The Attorney-Client Privilege In The Headlines?

A federal judge will rule on an urgent motion filed by attorney Michael Cohen’s attorneys who have challenged the controversial search of his home, office, and hotel room on Monday.

They claim that the documents and items seized were protected by the attorney-client privilege and cannot be disclosed to the special counsel or anyone else.

Mr. Cohen, of course, is the longtime attorney for President Donald Trump and has been representing him in various lawsuits and legal matters.

Whether you are involved the personal injury cases I specialize in or any other legal proceeding, communications between you and your attorney are usually confidential under the attorney-client privilege.

Since obtaining and serving a search warrant to grab an attorney’s files rarely happens, the startling early morning raid on Monday was alarming to us lawyers and to many others who believe it was overly extreme and unjustified.

Evidence like this is usually subpoenaed. Production can be contested in court and quashed by a judge.

You may be wondering how this raid could have happened and be afraid that the information and documents you share with your lawyer can be revealed.

When your discussions with your attorney are protected—and when they are not

Texas Rule of Evidence 503 sets out the requirements for the attorney-client privilege. When you hire a lawyer to represent you in a civil or criminal matter, your discussions cannot normally be discovered by any one else, e.g. the opposing parties and their lawyers, the judge, and the jury.

There’s a good reason for this. It is your right to speak openly and honestly with your legal counsel. An open discussion is the only way you can obtain the best legal advice and useful representation. If you have to wonder whether you say something and your attorney will have to tell the judge or police and you don’t confide freely, he cannot properly represent you.

Only when your attorney knows all the facts and evidence can he can build and present a strong case on your behalf. Your lawyer cannot hide the truth, but he can counsel you on your best options after he knows all the facts. This clarifies and speeds up the legal process because there will be no surprises once the trial begins.

However, communications with an attorney are not always protected. Rule 503 sets out various exceptions, including when the client has

Waived the privilege;

Allowed the information to become known by others; and

Used the services of an attorney to commit a crime or fraud.

Why has the privilege been discussed in the news all week?

As the media continues to guess at the motivation for the FBI’s search, there are open questions about whether the privilege will apply.

For example, President Trump stated he was never a client and had no knowledge of money Mr. Cohen paid to two adult film actresses. Further, any privilege might have been waived if it is proven that Mr. Cohen was doing something illegal or fraudulent.

When the government conducts a search of the premises of an attorney, there are strict rules that govern the search. Information, documents, and electronic files seized during the search have to be immediately reviewed by a unit of impartial attorneys to ensure that only information that answers the search warrant is produced to the FBI.